ELIZABETH COLDICUTT VS MARK PORCELLO INC

4. CASE # CASE NAME HEARING NAME HEARING RE: MOTION TO SET ASIDE ELIZABETH COLDICUTT AS DEFAULT ON COMPLAINT FOR OTHER AGENT FOR THOMAS CVPS2505376 COMPLAINT (OVER $35,000) OF COLDICUTT VS MARK ELIZABETH COLDICUTT BY MARK PORCELLO INC PORCELLO Tentative Ruling: The motion must be filed within six months of the clerk’s entry of default and also within a “reasonable time” after discovery of the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.)

A delay of three or more months or more is an unofficial standard under which courts will routinely deny relief unless there is a satisfactory explanation for the delay. (Stafford v. Mach (1998) 64 Cal.App.3d 1174, 1184.) The time runs from the entry of the default, not the default judgment. (Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.)

The application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed ... otherwise the application shall not be granted.” (C.C.P. § 473(b).) The court is empowered to relieve a party “upon any terms as may be just ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P. §473(b).)

Because the law favors judgments on the merits, “doubts must be resolved in favor of relief....” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) If the party in default moves promptly for relief and no prejudice to the opposing party will result from setting aside the default, only “‘very slight evidence will be required to justify a court in setting aside the default’” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [quoting Berri v. Rogero (1914) 168 Cal. 736, 740].)

The court may be asked to grant equitable relief from a default judgment whenever the “extrinsic fraud or mistake” is discovered; the only time requirement is that a party is expected to proceed diligently to seek relief. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) A court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake. (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 98.)

There are three essential requirements to obtain relief. The party in default must show a meritorious defense, a satisfactory excuse for not presenting a defense to the original action, and diligence in seeking to set aside the default once it was discovered. (Rappleyea, 8 Cal.4th 975, 982.)

Relief is generally available only for “extrinsic fraud or mistake,” but it does not require fraud or mistake in the strict sense—the terms “tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342.)

“Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or defense to the court as a result of being kept in ignorance or in some other manner being fraudulently prevented by the opposing party from fully participating in the proceeding,” while “‘[e]xtrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended....’” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228-1229.)

But “extrinsic fraud and extrinsic mistake are unavailable when a party's own negligence allows the fraud or mistake to occur.” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29.) And the fraud or mistake must be extrinsic rather than intrinsic, in the sense that the party must have been denied the opportunity to be heard. If the fraud or mistake goes to the merits of the action, or occurred at trial, it is deemed “intrinsic” and not ground for relief. (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 505.)

“[I]f a party has been given notice of an action and has not been prevented from participating therein,” relief must be denied because “[h]e has had an opportunity to present his case to the court and to protect himself from mistake or from any fraud attempted by his adversary.” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.)

Defendant Mark Porcello filed the motion to set aside on 7.20.26. Defendant seeks to set aside the default on the basis of CCP 473(b) or equitable relief. Porcello was defaulted in this matter on 6.10.26. On 2.10.26, the court sustained a demurrer as to some of the causes of action for Plaintiff’s complaint, and following court’s order permitting Plaintiff 30 days to file an amended complaint, no amended complaint was submitted. After the expiration of the time, Defendant Porcello failed to file an answer.

Defendant’s motion to set aside focuses on his prior participation in the case, to include filing the demurrer and a Motion to Dissolve the Operative Injunction. However, Defendant fails to give any basis for his failure to submit an answer, other than to state that Plaintiff did not alert Defendant that Plaintiff was not filing an amended complaint. Defendant references the court treating him as an active litigant, however, after entry of default, the court on 6.18.26 vacated the Motion to Dissolve as Defendant was no longer an active litigant.

The declaration submitted by Porcello fails to show mistake, inadvertence, surprise or excusable neglect that warrants setting aside the default. As to equitable relief, Defendant has not shown a satisfactory excuse for not presenting a defense, nor has Defendant shown any type of extrinsic fraud or mistake. Defendant’s reliance on Plaintiff litigating the Motion to Dissolve while also seeking a default is not persuasive. Nor is the court continuing the motion prior to the default being entered, grounds to grant the motion to set aside.

Motion to Set Aside Default DENIED.

Case Management Conference and OSC confirmed for 9.24.26.

5. CASE # CASE NAME HEARING NAME HEARING RE: DEMURRER ON CALIFORNIA LABOR COMPLAINT FOR OTHER COMMISSIONER, DIVISION EMPLOYMENT (OVER $35,000) OF OF LABOR STANDARDS CALIFORNIA LABOR COMMISSIONER, ENFORCEMENT, DIVISION OF LABOR STANDARDS DEPARTMENT OF ENFORCEMENT, DEPARTMENT OF CVPS2603169 INDUSTRIAL RELATIONS, INDUSTRIAL RELATIONS, STATE OF STATE OF CALIFORNIA, CALIFORNIA, ON BEHALF OF THE ON BEHALF OF THE PEOPLE OF THE STATE OF PEOPLE OF THE STATE OF CALIFORNIA BY LP FARM LABOR, LLC, CALIFORNIA VS LP FARM ZAVALA FARM, LLC, LUIS ALBERTO LABOR, LLC ZAVALA, CHARIFE I. ZAVALA Tentative Ruling: A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).)

In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly alleged, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)

However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Statute of Limitations: Under Labor Code § 98.7(c)(1): If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, the commissioner shall notify the complainant and respondent and direct the respondent to cease and desist from any violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees.

If the respondent does not comply with the order within 30 days following notification of the Labor Commissioner’s determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. An action by the Labor Commissioner seeking injunctive relief, reimbursement of lost wages and interest thereon, payment of penalties, and any other appropriate relief, shall not accrue until a respondent fails to comply with the order for more than 30 days following notification of the commissioner’s determination. The Labor Commissioner shall commence an action within three years of its accrual, regardless of whether the commissioner seeks penalties in the action.

The Complaint alleges that Plaintiff issued a determination letter to Defendants on 12/30/25, which contained a demand for remedies. (Complaint, ¶ 41.) Defendants have failed to comply with the Plaintiff’s determination and demand for remedies. (Id. at ¶¶ 43- 44.) This lawsuit was filed on 4/8/26, well within the three years set forth in Labor Code § 98.7(c)(1).

Defendants argue that the statute of limitations bars this claim because under Labor Code § 98.7(e), “the Labor Commissioner shall notify the complainant and respondent of the commissioner’s determination under subdivision (c) or paragraph (1) of subdivision (d), not later than on year after the filing of the complaint.” The Complaint alleges that on 7/11/17, Guiterrez filed the complaint with Plaintiff. (Complaint, ¶26.) The 12/30/25 determination by the Plaintiff is well over this one year time period. As such, this provision of Labor Code § 98.7 has not been complied with.

While Plaintiff failed to comply with this one year time period, this deadline is directory and did not take away Plaintiff’s jurisdiction to render a determination. Typically, requirements regarding the time within which an act must be done by a government entity are directory rather than mandatory or jurisdiction, unless the statute clearly expresses otherwise. (Edwards v. Steele (1979) 25 Cal.3d 406, 410.) The “directory” or “mandatory”